Takeaway: After the Ninth Circuit’s recent opinion, brand owners may have their brands used by others for non-competitive purposes.
Just last month, the Ninth Circuit Court of Appeals held that a dog toy specially named “Bad Spaniels Silly Squeaker,” which resembles a Jack Daniels whiskey bottle, is shielded from infringing Jack Daniels Distillery’s trade dress due to the protections afforded by the First Amendment. The Ninth Circuit reversed a bench trial’s finding that the dog toy infringed and diluted Jack Daniels’ trade dress. The Ninth Circuit’s decision expands the scope for the First Amendment beyond mere expressive works and may risk exposing brand owners to third party non-competitive use of their brands.
Image Credit: www. law.com/therecorder/2020/03/31/9th-circuit-turns-back-jack-daniels-trademark-win-over-squeaky-toy/?slreturn=20200315173102